Tuesday, 17 March 2015

Denmark and EU Justice and Home Affairs Law: Details of the planned referendum

Steve Peers

Danish participation in cross-border criminal law measures is symbolised by 'The Bridge', the 'Nordic Noir' series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will
in principle be voting on whether to replace the current nearly complete
opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective
opt-out. I have previously blogged on the implications of this plan in
general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of
the overall framework (for more detail, see that previous blog post). Back in
1992, Denmark obtained an opt-out from the single currency, defence and aspects
of JHA law (it’s widely believed that it also obtained an opt-out from EU
citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the
form of a Protocol attached to the EU Treaties as part of the Treaty of
Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in:
the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures
relating to the Schengen border control system (asmatter of international law, not EU law); the
EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on
allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and
legislation on service of documents (in the form of treaties with the EU). In
contrast, Denmark does not – and cannot
– participate in other EU rules on immigration and asylum law or cross-border civil
law, or policing and criminal law rules adopted since the entry into force of
the Treaty of Lisbon.

The Protocol on Denmark’s legal
position either allows it to repeal its JHA opt-out entirely, or selectively. If
it chooses to repeal the opt-out selectively, it would then be able to opt in
to JHA measures on a case-by-case basis, like the UK and Ireland, although
(unlike those states) it would remain fully bound by the Schengen rules.
Indeed, those rules will then apply as a matter of EU law in Denmark, not as a
matter of international law.

In practice, while Danish
governments have promised for a while to hold a referendum on the JHA opt-out, the
concrete plans to hold one in the near future were triggered in light of the
planned EU legislation to replace the current rules establishing Europol, the
EU police agency, with new legislation (on that proposal, see here). This led to an agreement between the
government parties and several opposition parties (excluding the far-right
Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol’ (for the text,
see here). This agreement states that the referendum will take place
after the next general election (which must be held by September 2015), and no later than 31 March 2016. The ‘main reason’
for the referendum is to allow Denmark to opt in to the new Europol rules, but the
parties also agreed to study whether Denmark should opt in to other EU civil,
criminal and policing laws which currently don’t apply. However, the parties
agreed that Denmark should not opt in to any EU immigration or asylum law
(besides Schengen, which already applies).

This analysis has now been
completed (see the text in Danish here), and the parties have agreed
that Denmark would apply to opt in to 22 EU laws if the referendum is
successful. Conversely, they have agreed not to opt in to 10 other EU laws.

As regards civil cooperation, the
parties have agreed to opt in to large majority of EU measures, as regards:
insolvency; payment orders; small claims; the European enforcement order;
mediation; the Rome Regulation (on conflicts of law concerning contract); the
Rome II Regulation (on conflicts of law concerning non-contractual liability); external
relations; protection orders; inheritance; maintenance proceedings; parental
responsibility; and account preservation orders. It should be noted that
changes to the insolvency proceedings regulation are about to be formally
adopted, and changes to the small claims rules will likely be agreed later this
year; presumably the agreement also entails opt-ins to the existing legislation
as amended.

In contrast, the parties agreed not to opt in to legislation on legal
aid in cross-border proceedings, or to the Rome III Regulation on conflicts of
law in divorce cases. Nor have they agreed yet on whether to opt in to the
pending proposals relating to jurisdiction and choice of law over marital
property, and the property of civil partnerships, in the event of relationship
breakdown. In general, the recent agreement states that decisions to opt in to measures
which have not yet been adopted depend on a future consensus of the relevant
parties, or endorsement in a general election.

As for policing and criminal law,
the parties agree to opt in to all measures concerning substantive criminal law
and most measures concerning EU agencies and mutual recognition. In particular,
they agree to opt into seven Directives, regarding: the European Investigation
Order; protection orders; trafficking in persons; sexual abuse of children; cyber-crime;
market abuse; and counterfeiting the euro. Conversely, they rule out opting in
to the legislation on crime victims’ rights, the three Directives on suspects’
rights (concerning interpretation and translation, access to a lawyer and the
right to information) and the rules on confiscation of criminal assets. They
also rule out opting in to the legislation on EU funding in JHA matters.

They have partly agreed on future
measures in this field, agreeing to opt in to the Regulations now under
discussion on Europol and Eurojust (the EU prosecutors’ agency) and the
Directive on passenger name records, but to opt out of the legislation
establishing the European Public Prosecutor. The Commission has also proposed legislation
on the European Police College, fraud against EU funds and drug trafficking,
along with three more suspects’ rights measures (concerning childrens’ rights,
the presumption of innocence and legal aid). Decisions on those measures will again
depend upon on a future consensus of the relevant parties, or endorsement in a
general election.

The parties’ clarification of
their intentions provides useful certainty for the Danish public when it has
the opportunity to vote on these issues. In general, in criminal matters Denmark
would be participating in the EU measures assisting the prosecution, without
any counterbalance by means of recent legislation regarding the rights of
victims or suspects. Similarly it would still be participating in the Schengen
rules on external border controls and the abolition of internal border checks,
without any of the accompanying harmonisation of immigration and asylum law
that applies to other Schengen States which are EU members. On the whole, Denmark
would also be participating in more JHA legislation than the UK and Ireland – not
just as regards full participation in Schengen (as is already the case), but
also as regards the EU legislation on inheritance, account preservation, investigation orders, market
abuse, currency counterfeiting and Eurojust, all of which one or both of the UK and Ireland have opted out of. On the other hand, the UK and
Ireland have opted in to the EU legislation on crime victims’ rights, some
of the legislation on suspects’ rights and the first phase of EU asylum law. Given that Ireland participates in the single currency, a Danish 'yes' to selective participation in JHA law would cement the UK's position as the chief non-participant in EU laws which bind most other Member States.